Part 9: What a Strong Expert Report Does and What a Weak One Costs You
In federal court, the expert report is the document that defines the boundaries of the pre-trial expert disclosure statement and expert testimony at trial. It is worth the time and attention it deserves.
What FRCP Rule 26 Requires
In federal court, expert reports are governed by FRCP Rule 26. The rule requires a complete statement of all opinions the expert will offer, the facts and data considered in forming those opinions, any supporting exhibits, the expert's qualifications, a list of cases in which the expert has testified in the previous four years, and a statement of compensation.
The report is not a summary or a preview. It is a complete disclosure, and opposing counsel is entitled to know exactly what the expert is going to say before they say it.
The Boundaries of Expert Testimony
A judge can and will limit an expert's testimony to what is explicitly contained within the written report or the summarized pre-trial expert disclosure statement. If an opinion, an assumption, a piece of data, or a methodology is not addressed in the report, it may not be available to the expert at trial.
We were an expert in a federal case where the judge enforced this rule so strictly that, even though the expert opinions were contained in the full written report, they were excluded during direct and cross if those opinions were not in the attorney-prepared pre-trial witness disclosure statement. It goes without saying that a report drafted quickly, under budget pressure, or without sufficient attention to detail can severely limit what the expert is able to say when it matters most.
What a Strong Report Looks Like
A strong report connects the dots. It clearly links the facts of the case, the data relied upon, the assumptions made, and the methodology applied to the conclusions reached. A trier of fact, or a judge evaluating admissibility, needs to be able to follow that chain of reasoning from beginning to end.
One of the most common weaknesses we see in expert reports is a methodology section that is too vague or too brief. The report needs to explain not only what the expert concluded but how they got there and why. A clearly articulated methodology is also one of the most important defenses against a Daubert challenge. We have written about that in more detail in a previous post.
A strong report is also transparent about limitations. Acknowledging data limitations, disclosing assumptions provided by counsel, and addressing alternative outcomes make for a more credible report than one that presents the analysis as if every input were certain. Transparency does not undermine the opinion. It strengthens it.
Last but not least, a strong report is appropriately scoped. A report that wanders into areas outside the expert's knowledge or scope of work, offers legal conclusions the expert is not qualified to give, or buries the key opinions in unnecessary background is harder to defend and easier to be attacked.
What Counsel Should Review
Before the report is finalized, counsel should review it with a specific focus on a few key areas. Are all opinions clearly stated? Is the chain of reasoning explicit and complete? Are assumptions disclosed and supported as necessary? And critically, does the report cover everything the expert will need to say at trial? Once the report is served, the opportunity to add to it is limited.
A Note on Oregon State Court
Everything discussed above applies to federal court. Oregon State court operates very differently. Under Oregon Rules of Civil Procedure, there is no pretrial disclosure requirement for expert witnesses, no advance disclosure of opinions, and no opportunity for opposing counsel to review the analysis and depose the expert before trial begins. Plaintiff's expert can present their analysis in the morning, and defense counsel may be reviewing demonstratives over lunch before cross examining in the afternoon. This becomes even more untenable if the judge determines that the two opposing experts should go on back-to-back. Defense counsel and its expert are severely hamstrung in this situation.
The absence of a report requirement in Oregon should not lower the bar for the quality of the analysis. It just means that the bar is set by the expert and counsel for the plaintiff rather than by the rules of evidence in other states and at the federal level. We have 30+ years of experience as experts in Oregon courts and can surely assist in navigating our unique expert witness system.
Up next: With the report finalized, the next step is understanding what the other side has put forward. In Part 10, we will cover how a damages expert evaluates the opposing expert's analysis and what that means for the overall case strategy.